An opt-out system for AI companies to access creative works doesn’t gel with Australia’s copyright laws. Here’s why

The ground is shifting beneath the feet of Australian authors and other creatives. A leaked proposal seen by the ABC suggests the government might grant artificial intelligence (AI) companies access to the copyrighted works of Australians under an opt-out system.

There are no firm plans as yet, but it does appear the government wants to incentivise big AI companies such as OpenAI and Anthropic to bring their business to Australia. Deputy Prime Minister Richard Marles stated:

The opportunity for Australia economically is enormous in collaborating with frontier companies.

It seems the government also wants to see big AI companies investing in data centre development in Australia.

What’s in play is a choice between the security offered by having local data centres versus the long-term interests of Australian writers and other creatives.

While details of the plan are not publicly available, the fact an opt-out system is being looked at suggests a backtracking from the Albanese government’s promise there would be no text and data mining exception to copyright for AI companies.

Under such an exception, Australian copyright holders would be compensated for the use of their works in AI training. However, Minister for Industry and Innovation Tim Ayres has denied a reduction in copyright protection.

The perils of opt-out

An opt-out system doesn’t gel with Australia’s current copyright laws. Under the Copyright Act, the owner of the copyright in a piece of writing or photo has the right to exploit those rights as they choose.

Forcing copyright owners to opt out of a given system – such as their works being included in training materials for AI models – impedes their rights, because it forces them to take action to protect those rights. Our copyright law dictates the burden should run the other way: it should be the AI companies asking for permission.

The problem with an opt-out system is that by the time you get around to actually opting out, your materials have likely been inside the neural network for a while. Once materials are in the model, the AI system can’t “unlearn” them.

This is where the heart of this dispute lies.

The problem is not just the taking of individual copyright-protected works. It’s the ever-increasing ability of AI systems to produce quality materials as a result of training on copyright-protected works. The better the data, the better the outputs.

This obviously has implications for Australian writers and creators. There are already studies that suggest readers prefer AI-produced works over those of human writers. Widening the range of materials that can permissibly be used for training likely further hastens the evolution of AI.

It also has implications for less obviously affected parties, such as academics and other educators. Another recent study suggested that law professors preferred AI answers over those written by their human colleagues.

The real problem is replacement

So should creatives be paid for their works used in training under a royalty scheme? That might not be enough because the prospect of being replaced or displaced by AI is the real problem.

AI has already made its way into creative industries and other areas of intellectual endeavour.

Visual artists, graphic designers and illustrators have been reporting how generative AI has encroached on their work, resulting in lower wages and even complete replacement.

A short film with AI-generated actor Tilly Norwood was released last year. And the popular music streaming service Spotify has recently been making an effort to remove millions of “AI slop” tracks from its platform.

In other industries where AI has taken over some of the work, such as the translator industry, there’s been a decline in job satisfaction for human workers. In effect, they’ve been displaced from primary translation work into secondary work, such as checking the accuracy of AI translations.

In law, another language-based discipline, AI is threatening to impact graduate employability. And graduate lawyers are being shifted onto verification tasks to ensure AI-generated content is accurate. This is a downgrading of their work tasks.

A recent government report has noted those occupations at risk of AI replacement experienced slower employment growth than those that were not at risk. Notably, the report listed advertising and marketing professionals as being among those most exposed to AI replacement.

All of the anxieties that exist in other industries are keenly felt by Australian authors and creatives. None of our worst fears has come to pass just yet, but giving AI industries a free pass on Australian copyright is the first step to a future in which there are some winners and some real losers.

That must not happen without a longer and more open consultation process.